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TMI Blog1974 (7) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... suit for declaration that they were sirdars of the plote in dispute. This suit was numbered 377 of 1953 and only respondents 1 to 6 were arrayed as defendants to this suit. On 14th July. 1954, the suit was decreed ex parte and on the basis of the declaration granted by the aforesaid decree in their favour the appellants took possession from the Criminal Court over the plots in dispute on 8th October. 1P54. Subsequently, an application was made for setting aside the ex parte decree which was allowed on 6th October, 1956, and the ex parte decree was set aside. The appellants thereafter made an application for impleadment of respondents 7 to 10 as defendants to the suit whereupon these respondents were impleaded in the suit on 2nd April, 1957. Respondents 1 to 10 thereafter made an application on 4th June, 1957, before the Munsif in whose Court the aforesaid suit was pending with a prayer to deliver back, possession over the plots in dispute to the supurdar who had been appointed by the Criminal Court or in the alternative, to appoint a receiver. This application was however, dismissed on 14th July. 1957. The suit was contested by respondents 1 to 10 and was dismissed on merits on 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1967 in this Court. Second Appeal No. 5185 of 1960 which had been filed by respondents 1 to 10 against the order of the Civil Judge dated 18th August, 1960, dismissing their application under Section 144. Civil P. C. came up for hearing on 30th January, 1967. and was disposed of by the following order: This appeal arises out of proceedings under Section 144, Civil P. C. It appears that during the pendency of this appeal the village in suit came under consolidation operations and title to the land has been decided finally between the parties. In view of the final decision by the consolidation authorities no useful purpose will be served in deciding this case on merits. The person who ultimately succeeds in proceedings for consolidation is to get the land in dispute. The rights of the parties are subject to the final decision which may be arrived at in the writ filed by the appellants in this Court. In view of the decision by the consolidation authorities this appeal has become infructuous. Accordingly it is hereby dismissed but without any order as to costs. At this very place it may also be pointed out that the appellants had also filed an appeal against the decree Passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 209 of the U. P. Zamindari Abolition and Land Reforms Act and since no such suit was filed the appellants acquired sirdari rights under Section 210 of the said Act on the expiry of the period of limitation prescribed for filing a suit under Section 209 which was at that time three years from the next of July following the date of occupation. 4. In regard to the ground on which the learned single Judge had allowed the writ petition, as would appear from the referring order dated 24th January, 1974, the learned counsel for both the parties were agreed before the Division Bench that the fact of possession anterior to the proceedings under Section 145. Criminal P. C. will have no bearing on the question whether the appellants perfected their title to the plots in dispute by adverse possession and that the learned counsel for the appellants did not dispute the view of the learned single Judge on the said aspect of the matter namely that the fact that during 1356 and 1357 Fasli the appellants were in possession did not in any manner help them in the instant proceedings. 5. In regard to the first submission made by learned counsel for the appellants namely that as a result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 10 were the main questions which according to the learned Judges required consideration by a larger Bench. 7. When the special appeal came up for hearing before us learned counsel for the appellants reiterated the submissions made by him before the Division Bench. For the reasons recorded by the Division Bench in its referring order dated 24th January, 1974, we are of the opinion that the submissions made by learned counsel for the appellants in regard, to the subsequent applications for restitution dated 4th June. 1959, and 5th February, 1960, being barred by the general doctrine of res judicata on account of the dismissal of their earlier application dated 4th June. 1957, have no substance and must be rejected. We are also in respectful agreement with the finding recorded by the learned Judges that in so far as the claim of respondents 1 to 6 that they were bhumidhars of plot No. 878 is concerned, it was not barred by time and the consolidation authorities were competent to adjudicate upon their rights in respect of the said plot. Even though the appellants had been Put in possession by the Criminal Court on 8-10-1954 the said possession being in pursuance of a declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Civil P. C. After an adjudication in regard to title has been made, it is the duty of the consolidation authorities to carve out chaks. In that process possession may be delivered but it cannot be said that the proceedings under the U. P. Consolidation of Holdings Act are proceedings for restitution or other relief which could be obtained by application under Sub-section (1) of Section 144. Civil P. C. 9. Coming now to the claim of respondents 7 to 10 of being sirdars of plots Nos. 874 and 875 it is to be seen that it has not been asserted by either party that these respondents were not bound by the order passed on 29th October, 1951, under Section 146. Criminal P. C. In fact, as already pointed out above, the proceedings under Section 145, Criminal P. C. had been initiated by Shyam Lal who was the servant of respondents 7 to 10. It has also not been disputed that the appellants too were bound by the order dated 29th October. 1951. The position in law, therefore, was that since the property in dispute including plots Nos, 874 and 875 was in custodian legis. it was not necessary for either party to file a suit for possession and a decree for declaration of rights was all that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tances of each case. What is restitution ? Broadly speaking, it is the right of a party to being placed in the same position which he occupied before the decree or order which has subsequently been varied or reversed was executed. Suppose a landlord files a suit for ejectment against his tenant. The suit is decreed ex parte and in execution of this ex parte decree the tenant is ejected and the landlord is put in possession. Subsequently the ex parte decree is set aside. The tenant can certainly without wailing for the final decision in the suit apply for being out back in possession, i. e. being placed in the same position which he occupied before he was elected in execution of the ex parte decree which has subsequently been set aside. It is so because the very setting aside of the ex parte decree entitles the tenant to be put back in possession. Similar was the situation in the cases referred to above, even though in different circumstances. Will the same situation, however, obtain if as in the instant case the mere setting aside of the ex Parte decree does not entitle the defendants to the suit to claim possession ? In view of the order dated 29th October, 1951, passed under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 29th October, 1951, passed under Section 146. Criminal P. C. Neither on the date when the ex parte decree was passed nor on the date when the appellants took possession over the plots in dispute in consequence of such decree were the respondents in possession over the said plots. Possession over the plots was with the supurdar appointed in proceedings under Section 146, Criminal P. C. It is no doubt true that the possession of the supurdar was to enure for the benefit of the person in whom title to the plots vested, but a declaration about title was vet to be made in the suit. How could then the respondents claim to be put back in possession just because the ex parte decree had been set aside ? They could do so only when a declaration contrary to or in variance of that which had been granted by the ex parte decree in favour of the appellants was subsequently granted in their favour. This situation occurred only on 22nd May. 1958, and subsequently after remand on 30th January, 1960, when suit No. 337 of 1953 was dismissed on merits holding that the title did not vest in the appellants. The claimants to the plots in dispute being only those persons who were parties to sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d acquired sirdari rights under Section 210 of the U. P. Zamindari Abolition and Land Reforms Act. 15. The argument raised in this behalf involves interpretation of the words party and parties occurring in Section 144, Civil P. C. According to learned counsel for the appellants, these words refer to party or parties to the decree or order on a variation or reversal of which the right to restitution accrued. On the other hand, it was urged by the respondents that the said words refer to the party or Parties to the application for restitution. 16. There is a divergence of judicial opinion on this point but in our opinion, it is not necessary to resolve that conflict in the instant case in view of the fact that it is settled law that Section 144, Civil P. C. is not exhaustive and the Court had inherent jurisdiction to grant restitution. In Jai Berham v. Kedar Nath AIR 1922 PC 269 the Privy Council was dealing with an execution sale of immovable property which took place in 1904. The sale and the certificate of sale were set aside by the Privy Council in 191'3 reversing the decree of the High Court at Calcutta. The auction-purchasers had been in possession since February, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to apply for restitution and it was pointed out that even if Section 144, Civil P. C. was not applicable, relief could be granted to him under Section 151, Civil P. C. 18. That the provisions of Section 144, Civil P. C. were not exhaustive and that the Court has inherent power to restore any party which has suffered any injury by virtue of any order passed by the Court to the position which it would have occupied if the wrong order had not originally been passed by the Court was the view taken by the Privy Council in an earlier judgment in Prag Narain v. v. Kamakhia Singh (1909) ILR 31 All 551 (PC) and was followed by the Lahore High Court in Sohnun v. Mast Ram AIR 1929 bah 657. The same view was taken by the Madras High Court in S. Chokalingam v. N. S. Krishna AIR1964Mad404 , the Calcutta High Court in Jotindra Nath v. Jugal Chandra AIR1966Cal637 and the Jammu Kashmir High Court in Subhash Chander v. Bodh Rai AIR 1969 J K 8. 19. On the authority of these cases and on the principle contained in the maxim actuals curiae neminem gravabit it is really the duty of the Court to grant restitution under its inherent powers when a person has been deprived of his property due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequences of not filing a suit under Section 209 inevitably followed so that the rights of respondents 7 to 10 stood extinguished when the relevant notification under Section 4 of the U. P. Consolidation of Holdings Act was issued in 1961. 24. This argument too, in our opinion, cannot help the appellant on the facts of the present case. Here before the limitation to file a suit under Section 209 could expire on 1st July, 1958, the same being three years at that time, respondents 7 to 10 were impleaded as defendants in suit No. 377 of 1953 on 2nd April, 1957. The right to claim restitution, as observed above, accrued after these respondents had been impleaded namely on 22nd May. 1958, when the suit was dismissed initially and on 30th January, 1960, when it was dismissed after remand. These respondents had applied for restitution on both the occasion's and second appeal No. 5185 of 1960 filed by them against the order dismissing the subsequent application for restitution was pending when the relevant notification under Section 4 of the U. P. Consolidation of Holdings Act was issued. So was opening the appeal filed by the appellants against the decree suit No. 377 of 1953. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and Land Reforms Act and the other by defending suit No. 377 of 1953 and getting a declaration of title in their favour and thereafter instituting restitution proceedings, and they chose to avail of one of these two remedies even though the remedy chosen by them involved more risk than the other, it cannot be said that their rights, on the peculiar facts of this case, stood, extinguished when the notification under Section 4 of the U. P. Consolidation of Holdings Act was issued in 1961. 25. Lastly, it was urged for the appellants that when respondents 7 to 10 were not in possession on 2nd April, 1957, namely on the date on which they were impleaded in suit No. 377 of 1953, they should have filed a suit for ejectment against the appellants irrespective of the pendency of suit No, 377 of 1953 which had been filed by the appellants for declaration of title. Reliance was placed on Narayan v. Puttabai AIR 1949 PC 5. In that case one Gurunath was handed over the properties in dispute on 24th February, 1920, by one Tungawa purporting to act under the terms of an award. Gurunath filed a suit on 25th November, 1920, against Narayan Patil and others for a declaration that he was in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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